The dangerous malleability of insurrection: When military power confronts civil authority

“ Force leads to violence, violence to mob conflicts, and these to rule by the strongest groups with control of the most deadly weapons. Our Constitution, noble work of wise men, was designed-all of it-to chart a quite different course: to 'establish Justice, insure domestic Tranquility * * * and secure the Blessings of Liberty to ourselves and our Posterity.' At times the rule of law seems too slow to some for the settlement of their grievances. ”

“ Whereas large standing armies, military occupation, martial law, military tribunals, and the suspension of the privilege of the writ of habeas corpus and the right of trial by jury are in time of peace dangerous to public liberty, incompatible with the individual rights of the citizen, contrary to the genius and spirit of our free institutions, and exhaustive of the national resources, and ought not, therefore, to be sanctioned or allowed except in cases of actual necessity for repelling invasion or suppressing insurrection or rebellion ”

“ There are under the Constitution three kinds of military jurisdiction—one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of the States maintaining adhesion to the National Government, when the public danger requires its exercise. ”

“ It will be observed that of the three kinds of military jurisdiction which can be exercised or created under our Constitution there is but one that can prevail in time of peace, and that is the code of laws enacted by Congress for the government of the national forces. That body of military law has no application to the citizen, nor even to the citizen soldier enrolled in the militia in time of peace. ”

“ The president of the United States may use the land and naval forces whenever by reason of insurrection, domestic violence, unlawful obstructions, conspiracy, combinations or assemblages of persons it becomes impracticable to enforce the laws of the land by the ordinary course of judicial proceedings, or when the execution of the laws is so hindered by reason of such events that any portion or class of the people are deprived thereby of their rights and privileges under the constitution and laws of the country. ”

“ In the light of these decisions, it must be clear to every mind that the question of the existence of an insurrection, and the necessity of calling into requisition for its suppression both the militia of the states and the army and navy of the United States, and of proclaiming martial law, which is an essential condition of war, whether foreign or domestic, must rest with the officer of the government who is charged by the express terms of the Constitution with the performance of this great duty for the common defence and the execution of the laws of the Union. ”

“ By necessary implication, when rebellion or invasion comes, the decision is to be made from time to time; and I think the man whom, for the time, the people have, under the Constitution, made the commander-in-chief of their army and navy, is the man who holds the power and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hands to be dealt with by all the modes they have reserved to themselves in the Constitution. ”

“ If, as Commander-in-Chief, the President may not, in time of insurrection or war, proclaim and execute martial law, according to the usages of nations, how he can successfully perform the duties of his office—execute the laws, preserve the Constitution, suppress insurrection, and repel invasion? ”

“ To constitute a levying of war, there must be something worse than a common riot or outrage; ‘there must be a species belli?’
“Could the Jury find this on the present occasion? The utmost force that had been mentioned consisted of forty men. These forty men were to be marched with unfurled banners through the city, to take two cannon in Gray’s Inn-lane, and six in the Artillery Ground, and they were to possess themselves of the Mansion-house. ”

“ The next paragraph lays down the chief condition that can justify martial law, and also marks the boundary between martial and civil law:
'While the laws are silenced by the noise of arms, the rulers of the armed force must punish, as equitably as they can, those crimes which threaten their own safety and that of society, but no longer; every moment beyond is usurpation. As soon as the laws can act, every other mode of punishing supposed crimes is itself an enormous crime. ”

“ If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. ”

“ The men whose acts we complain of erected themselves, it will be remembered, into a tribunal for the trial and punishment of citizens who were connected in no way whatever with the army or navy. And this they did in the midst of a community whose social and legal organization had never been disturbed by any war or insurrection, where the courts were wide open, where judicial process was executed every day without interruption, and where all the civil authorities, both state and national, were in the full exercise of their functions. ”

“ They will not set up the plea of necessity, for they are well aware that it would not be true in point of fact. They will hardly take the ground that any Kind of necessity could give legal validity to that which they law forbids.
This, therefore, must be their position: that although there was no war at the place where this commission sat, and no actual necessity for it, yet if there was a war anywhere else, to which the United States were a party, the technical effect of such war was to take the jurisdiction away from the civil courts and transfer it to army officers. ”

“ Martial law is the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military chief, or supreme executive ruler. ”

“ Notwithstanding this fact, I have yet to learn that any loyal man ever challenged, during all the period of our conflict for independence and nationality, the validity of that law for the trial, for military offences, by military tribunals, of all offenders, as the law, not of peace, but of war, and absolutely essential to the prosecution of war. I may be pardoned for saying that it is the accepted common law of nations, that martial law is, at all times and everywhere, essential to the successful prosecution of war, whether it be a civil or a foreign war. ”

“ It is difficult to perceive what course of reasoning can be adopted, in the light of that decision, which will justify any man in saying that the President had not the like power to proclaim martial law in time of insurrection against the United States, and to establish, according to the customs of war among civilized nations, military tribunals of justice for its enforcement and for the punishment of all crimes committed in the interests of the public enemy. ”

“ I would be glad to know by what law the President, by a military force, acting only upon his military orders, is justified in pursuing, arresting, and killing one of these conspirators, and is condemned for arresting in like manner, and by his order subjecting to trial, according to the laws of war, any or all of the other parties to this same damnable conspiracy and crime, by a military tribunal of justice—a tribunal, I may be pardoned for saying, whose integrity and impartiality are above suspicion, and pass unchallenged even by the accused themselves. ”

“ The argument of the gentleman, to which the court has listened so patiently and so long, is but an attempt to show that it is unconstitutional for the government of the United States to arrest upon military order and try before military tribunals and punish upon conviction, in accordance with the laws of war and the usages of nations, all criminal offenders acting in aid of the existing rebellion. ”

“ The gentleman says, with an air of perfect confidence, that he denies the jurisdiction of military tribunals for the trial of civilians in time of war, because neither the Constitution nor laws justify, but on the contrary repudiate them, and that all the experience of the past is against it. I might content myself with saying that the practice of all nations is against the gentleman's conclusion. The struggle for our national independence was aided and prosecuted by military tribunals and martial law, as well as by arms. ”

“ The government, in preferring this charge, does not indict the whole people of any State or section, but only the alleged parties to this unnatural and atrocious conspiracy and crime. The President of the United States, in the discharge of his duty as Commander-in-Chief of the army, and by virtue of the power vested in him by the Constitution and laws of the United States, has constituted you a military court, to hear and determine the issue joined against the accused, and has constituted you a court for no other purpose whatever. ”

“ In New England, large bodies of men assembled, refusing to pay their taxes and openly threatening to overturn the government. This insurrection, known as Shays's Rebellion, from the name of its leader, was put down by the militia under General Lincoln.
CONSTITUTION ADOPTED.—Under these circumstances, many of the best men of the land felt the need of a stronger national government. A convention was called in Philadelphia to revise the Articles of Confederation. Washington was chosen president. ”

“ All were in a state of most anxious suspense,--the Republicans to know what initiative the Administration at Washington would take, and the Democrats to determine what course they should follow if the President should call for troops to put down the insurrection.
Before we meet again, Mr. Lincoln's proclamation and call for seventy-five thousand militia for three months' service were out, and the great mass of the people of the North, forgetting all party distinctions, answered with an enthusiastic patriotism that swept politicians off their feet. ”

“ The House must reject this outrageous attempt to overturn the election and this incitement of violence by a sitting president against his own government. President Trump committed a high Crime and Misdemeanor against the Nation by inciting an insurrection at the Capitol in an attempt to overturn the results of the 2020 Presidential Election. The facts establish that he is unfit to remain in office a single day longer, and warrant the immediate impeachment of President Trump. ”

“ Moreover, the lawlessness that resulted from President Trump’s conduct was entirely foreseeable by the President.
President Trump openly acknowledged, in advance of the insurrection, that his statements had incited huge crowds to descend on D.C. On the eve of the event, President Trump publicly tweeted:
Washington is being inundated with people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. ”

“ And when those officers have declared the character in which they appear, the persons within are bound to yield themselves in the same manner as if they had been met in the fields, or in the open street; and if any of these officers be killed when the arrest would have been lawful, then the party by whom the death-wound is inflicted becomes guilty of the crime of murder. The arrest of persons under the authority of a warrant from the magistrates is a lawful arrest. So also is the arrest by peace-officers, without a warrant, of persons supposed or reasonably alleged to have committed felony. ”

“ Are citizens to be called upon, threatened, ill-used at the will of the soldiery, and put under arrest, by pretext of the law military, in breach of the fundamental rights of subjects, and contrary to the law and franchise of the land? * * * Will the spirits of people as yet unsubdued by tyranny, unawed by the menaces of arbitrary power, submit to be governed by military force? ”

“ It will take substantial public diplomacy work by future Presidents to overcome the international damage done to the prestige of the United States. As reported in the news, for America’s adversaries, “there was no greater proof of the fallibility of Western democracy than the sight of the U.S. Capitol shrouded in smoke and besieged by a mob whipped up by their unwillingly outgoing president.” [176]
Already the insurrection incited by President Trump has been a propaganda boon to many authoritarian regimes. ”

“ He was very upset by this, and, as I recall, he bellowed at everyone sitting in front of him in a semicircle and he waved his finger around the semicircle saying we were losers, we were losers, we were all fucking losers," Barr said. " [H] e then raised—you know, he talked about whether he should invoke the Insurrection Act . . . ”

“ As President, I must act to protect the security and interests of the United States and its people. I am committed to our ongoing efforts to engage those countries willing to cooperate, improve information-sharing and identity-management protocols and procedures, and address both terrorism-related and public-safety risks. ”

“ All Americans are affected by threats to our Nation's cybersecurity. In recent years, bad actors in cyberspace have launched attacks on a cross-section of America: businesses both small and large, State and local governments, schoolhouses, hospitals, and infrastructure critical to public safety and national security. My Administration is committed to protecting Americans against these threats. During Cybersecurity Awareness Month, we reflect on our Nation's increasing reliance on technology and the internet and raise awareness about the importance of cybersecurity. ”

“ It may be asked, may a general never in any case use force but to compel submission in the opposite army and obedience in his own? I answer, yes; there are cases in which he may. There is a maxim of our law which gives the reason and the extent of the power: 'Necessitas quod cogit defendit.' This is a maxim not peculiar in its application to military men; it applies to all men under certain circumstances.
Private persons may lawfully tear down a house, if necessary, to prevent the spread of a fire. Indeed, the maxim is not confined in its application to the calamities of war and conflagration. ”

“ A mutiny, breaking out in a garrison, may make necessary for its suppression, and therefore justify, acts which would otherwise be unjustifiable. In all these cases, however, the person acting under the pressure of necessity, real or supposed, acts at his peril. The correctness of his conclusion must be judged by courts and juries, whenever the acts and the alleged necessity are drawn in question. ”

“ They will find that violence, once let in, subverts all law, and that the party which, in the long run, has most reason to dread the inroads of physical force is that which, in the long run, has not physical force upon its side. This is no superfluous or irrelevant remark, when that strange and fearful epilogue to the civil war in America, the Jamaica Massacre, is about, apparently, to become the subject of a party contest. Of course, though persons may be held blameless for having played their natural parts, inferences will be drawn from what has passed as to the character of institutions. ”